Revisiting the Holographic Will

It seems that it is always a good time to review this.  The other day a client asked me if an elderly friend could “dictate” the terms of his will and then sign the transcribed document.  In Tennessee, the answer is no.

            Since 1941, the law in Tennessee has been that a will must be signed by the testator and two or more attesting witnesses who must sign as attesting witnesses in the presence of the testator and in the presence of each other. 

 

            The only significant exception to this is the holographic will which is defined in Pritchard on Wills and Administration of Estates (5^th Ed.) as “a paper writing appearing to be the last will of a deceased person, all the material provisions of which are written in his own handwriting” and “the testator’s name must have been subscribed to it, or inserted in some part of.”  There must be proof by at least two people that they recognize the deceased’s handwriting.

            Note the important part – all the material provisions must be in the testator’s own handwriting.  This is the part that seems to get so often overlooked in the age of word processing. 

            The bottom line is this – there is nothing wrong with someone writing their own will – but it must meet all of the requirements of a holographic will.  If not,  it is completely void. People have occasionally said to me that they don’t mind the document being void as long as it expresses their intent, but this is meaningless. If you die without a will your property passes by the laws of intestate succession—which may or may not be what you intended.  In this era of online will kits and the like, the crucial distinction between a holographic will, a properly attested will and a legally void document often gets overlooked.  This is one of those important times when it just makes good sense  to review the terms of the will with an attorney and have them handle both the preparation and execution of the document itself.

The Intersection of Copyright Law and Collection Law or Bow Wow Wow Yippee Yo Yippee Yea Part 2

One could create an entire law school curriculum on the legal battles of George Clinton.  The latest reported case from the United States Court of Appeals for the Ninth Circuit illustrates the unique relationship between entertainment law, copyright law and creditor's rights.

            Apparently George Clinton owed his former lawyers, Hendricks & Lewis over 1.7 million dollars in legal fees.  The firm sued Clinton, received a judgment and was able to convince the trial court to appoint a receiver and take custody of four of Clinton's iconic master recordings including "The Electric Spanking of War Babies" and "One Nation Under A Groove" for the purpose of maximizing "the income stream from the Funkadelic master sound recordings without selling or otherwise permanently disposing of the copyrights".  (Note that this is different from the initial press reports that seemed to indicate that the law firm ended up with ownership of the masters).  The goal apparently is for the receiver to exploit the recordings, pay the judgment creditor and then return the masters to Clinton.

            The copyright portion of the case is fascinating.  Clinton signed the typical recording agreement with Warner Brothers in 1975 acknowledging that the records were "works made for hire" or alternatively agreeing that he had assigned all rights in the recordings to the label.  Warner Brothers in turn reassigned the recordings to Clinton in 1993. 

            Clinton argued that the assignment of his recordings by the Court to the receiver violated Section 201(e) to the Copyright Act which prevents authors from "involuntary transfers" of their copyrights.  However Section 201(e) clearly states that it only applies "when an individual author's ownership of a copyright or of any of the exclusive rights under a copyright has not been previously transferred voluntarily by that individual author."  By the terms of the Warner Brothers agreement Clinton was either not the original "author" of the sound recording or being the original author he voluntarily assigned his rights to the record company, thereby losing the protections of Section 201(e). 

            The case is primarily relevant  because it establishes the important point that in some instances copyrights can be subject to execution to satisfy judgments and that although copyright is in the  exclusive domain of federal law the courts will look to state law to interpret how the execution will proceed from state to state.  This is important to both collection lawyers and to artists and writers and other copyright owners seeking to protect their copyrights in the event of litigation.

Saving Studio A

            I am a preservationist.  I live in an historic district in a Victorian home that my wife and I have painstakingly restored and renovated.  I love old houses and buildings and hate to see them torn down.  That's my bias.

            At the same time, I am not an absolutist.  I studied historic zoning in law school and I know the Constitutional arguments pro and con.

            Like many Nashvillians, I was surprised but not shocked to learn that the RCA Building (which includes  Studio A) on Music Row was about to be sold.  I read Ben Folds' open letter to the powers that be trying to save Studio A from demolition. My wife and I attended a rally as Studio A on June 30 and listened to eloquent, impassioned speeches from Folds, Dave Pomeroy and many more people about the need to preserve the "music" and  Music City before it becomes Condo City.

            The very next day I read property owner Harold Bradley's stunning rebuke in a letter where he basically said that he and the late Chet Atkins had been trying to unload this piece of property for 24 years and that it had no historical value or cultural relevance whatsoever. 

            I have a great deal of respect and empathy for Harold Bradley but I think that he is mistaken.  Sometimes those involved in making history are not the best judges of their own contributions. 

            I spent the first 20 years of my career in various offices on Music Row.  Like most people who work there, I probably wasn't noticing the architecture because I spent my time driving through the alleys from building to building and  trying to avoid the tourists driving the wrong way down 16th Avenue South.  But I have always admired the RCA Building.  To my eyes, it is a great example of mid‑century modernism and a symbol of all things "Countripolitan"-the sound and the magic that Mr. Bradley, Mr. Atkins and their peers created.  To my mind it is important that we preserve the RCA Building just like it is important that we preserve the recordings that were made there and the stories of how those recordings were made and the people that made them.

            One of the things that struck me when I visited the RCA Building last week was that it was not a dormant relic.  Most of the offices looked occupied by living, breathing music businesses and the studio itself was large and vibey ‑ in that way that all great studios are.  More importantly, it was active. This is one of my main complaints in dealing with the developer versus historic preservation issue:  Why tear down something that is still useful and vibrant?  As Ben Folds alluded, it really goes to the fabric of a city.  Music Row is famous for reasons and the music business developed there for a reason.  There is positive energy created by all of these music businesses operating in proximity to each other. Music Row  is one of the first places out‑of-town guests want to see when they hit Nashville and as record companies and publishers vacate the area it's getting more and more difficult to find much to showcase ‑ the RCA Building and Studio A is a shining exception.

            Obviously, no one is suggesting that the building owners be stripped of their property rights but this is a wakeup call for a public/private discussion of the steps that could be taken to preserve this landmark building before it is too late.  Remember that Liverpool tore down the Cavern Club only to rebuild a replica across the street.  Memphis razed Stax Records only to rebuild a Disneyworld-like replica in the same spot because it realized its error.  Nashville does not have to make the same mistake.  Start the discussion.

Is 17 USC 205(e) a Trap for the Unwary? Advice to Puiblishers and Administrators

Not long ago I was involved in what should have been a routine lawsuit over a collection of past-due royalties.  At some point during the litigation the other side brought up 17 USC 205(e) as a possible defense.

            For the unaware this little-discussed section of the Copyright Act states:

A non-exclusive license, whether recorded or not, prevails over a conflicting transfer of copyright ownership if the license is evidenced by a written instrument signed by the owner of the rights licensed…and if

(1)        the license was taken before execution of the transfer; or

(2)        the license was taken in good faith before the recordation of the transfer and without notice of it.

            Section (1) is a no-brainer but Section (2) is a potential landmine as it gives a possible defense of innocent infringement in a case where a licensee claims to have acquired rights without notice of the prior assignment (for example from an artist or a songwriter).

            I researched the statute pretty carefully and could find no reported cases dealing with it specifically although there are plenty of cases that explore similar territory and those cases generally come down on the side of the copyright owner (see for example Douglas v. Hustler Magazine, Inc., 769 F.2d 1128 and Symnatec Corp v. CD Micro, LLC, 286 F. Supp. 2d 1265) which states plainly “failure to record an assignment of copyright is not available as a defense to infringement”.

            Nonetheless despite the comfort these cases offer this odd statute does seem to present some kind of defense in those rare cases where a licensee could actually prove that it  had no knowledge of a prior transfer of copyright ownership.  The lesson here for all publishers and administrators should be to always record copyright assignments and related documents as soon as possible after execution.

Book Report: The Doors Unhinged

My wife tells me that I read entirely too many music books.  Also, as an attorney, I must confess to a soft spot for legal thrillers.  If you put the two together, I can guarantee I’ll read it.  (Right here is a good place to praise Stan Soocher’s They Fought the Law,  one of the best nonfiction music/legal books out there – a fascinating read).

            However I want to write about John Densmore’s The Doors Unhinged (Percussive Press 2013), an engrossing first-person account of Densmore’s lawsuit (and ensuing counterclaim) against Robby Kreiger and the late Ray Manzarek).   The subtitle  of the book is “Jim Morrison’s Legacy Goes on Trial” and that is pretty accurate.  Music fans with long memories may recall that in 2004, Densmore sued his former band mates for violating the Door’s longstanding partnership agreement and touring with another singer and drummer as “The Doors.”  Kreiger and Manzarek filed a counterclaim against Densmore suing him for a mere $40 million, essentially for breach of fiduciary duty to the band partnership because of his failure to agree to license the band’s songs for various commercials.

            Early in the book Densmore recalls how the late Jim Morrison was vehemently  against the use of The Doors’ songs in commercials.  Densmore felt that he had to honor Morrison’s legacy and the band’s original partnership agreement by continuing to veto any commercial exploitation of the band’s music.  There is a fascinating section where Densmore discusses The Doors’ original attorney, Abe Somer, and the band’s original partnership agreement.  We forget sometimes that there was a formal music business back in the ‘60s and this section of the book fascinates me.

            All of this leads to a trial in civil court in Los Angeles.  Densmore’s depiction of the trial is spot on.  He gives a wonderful description of his own counsel Jerry Mandel as well as opposing counsel John Lavely.  People are strange and it is really strange to see icons of a generation reduced to spiteful litigants but it is this inherent drama of Morrison’s legacy versus 21^st century economics that makes this story so compelling.  Of course you root for Densmore and his ideals but you can’t help but feel sympathetic to Robby Kreiger and Ray Manzarek when faced with the opportunities to profit off of work they did 40 years earlier. It would be hard to resist.  Densmore also gives a great description of the life of a lawsuit from the discovery phase through the actual trial itself where monotony goes head to head with angst and fear until the trial itself becomes almost a new daily reality for the litigants.

            As in all legal thrillers, I won’t tell you how the book ends.

            If I have any criticism, it is that the last chapter is totally unnecessary and a bit self-serving.  Still, one is left with the impression that Densmore is one of the good guys.  As Tom Waitssays in the blurb, “John Densmore is not for sale and that is his gift to us.”  I highly recommend this book to fans of The Doors and to those with an interest in the legal inner workings of a rock and roll partnership.